This
paper was written with guidance from Margaret Bowman, Director, Environmental
Program for Central and Eastern Europe.Additional guidance was provided by Elissa Parker, Director of Research
and Training.

SUMMARY

This paper explores the ways in which citizen involvement
can improve the fairness and effectiveness of environmental enforcement.Section 1 of the paper discusses the overall
value of such citizen involvement.Section 2 surveys the wide range of roles citizens can play in the
enforcement process.Section 3 focuses
on ways in which citizens can use the courts to work towards environmental
enforcement goals.Section 4 examines
citizen involvement in practice, highlighting some practical considerations
relevant to designing and implementing citizen participation mechanisms.

1INTRODUCTION

Citizens are one of a nation's greatest resources for
enforcing environmental laws and regulations.They know the country's land and natural attributes more intimately than
a government ever will.Their number
makes them more pervasive than the largest government agency.And because citizens work, play, and travel
in the environment, each has a personal stake in its beauty, health, and
permanence. (1) Citizens are omnipresent, motivated, and uniquely interested in
environmental quality.

A bird-watcher walking in the woods sees chemical waste
flowing through a stream, traces the source to a neighboring factory, and
alerts government agencies to the factory's violation of its emissions
discharge permit.A local citizen group
in a small town near a coal mine suggests to a state mining agency practical
ways, based on the citizens' own observations of the mine in operation, of
making environmental standards for mines easier to administer and enforce.A city resident notices that municipal buses
are emitting noxious fumes, sues the bus company, and wins a court order
requiring the company to place pollution control devices in the bus exhaust
systems.These are just a few examples
of the many and varied influences citizens can have on the process of environmental
enforcement.

Drawing on the resources of citizens can enrich and
strengthen the environmental enforcement process in several ways.First, citizen participation in
environmental enforcement taps the direct, immediate connection between
individuals and their environment.Citizens are uniquely knowledgeable about their own communities.Their day-to-day observations give them
access to information about environmental conditions that the government could
never obtain.Involving citizens in
environmental enforcement encourages productive use of this information.

The intimate connection between individuals and their own
communities also enables citizens to concentrate on localized environmental
problems.A federal or even a state
government agency might not consider such "small-scale" threats to
the environment serious enough to justify action on the national or regional
levels.But correcting these harms can
be vital to the survival of a particular town or rural area.Citizen participation in environmental
enforcement thus broadens access to enforcement resources.

Second, the injection of varied, non-institutional
perspectives and information sources into the enforcement process may improve
the quality of enforcement decisions.For example, the views of individual users of a national park on how a
ban on logging in the park should be implemented may well differ from those of
a timber company that wants to restrict logging by its competitors.Both are likely to be different from the
position of the government enforcement agency which lacks the funds to
investigate and prosecute violations.Allowing and encouraging the hikers and loggers to affect the outcome,
by, for example, participating in government enforcement actions or suing on
their own to implement the ban, may increase compliance, deter violations, and
contribute to a more realistic and responsive environmental enforcement
strategy.

The dynamic between citizens and the government agencies
officially charged with enforcing environmental laws adds to the potential
effect of citizen participation in this area.In the context of environmental enforcement, citizens and government are
presumed to share a goal -- that of maximizing compliance for the good of
all.This presumption of a common
interest is reflected in the dual meaning of the adjective "public,"
when used in conjunction with the operation of a democratic system of
government.In this context,
"public" refers both to the citizenry at large -- which engages in "public
participation" -- and to the government -- which formulates and implements
"public policy."

Yet tension sometimes arises between these two
"public" entities.The
government may fear that citizen involvement in environmental enforcement will
disrupt its own enforcement efforts and will reduce its flexibility to tailor
enforcement decisions to particular circumstances. (2) Government enforcers may
also believe that if enforcement actions in the courts are mounted on a
piecemeal basis, rather than as part of a coordinated strategy, poor judicial
precedents may be set that could hinder further enforcement efforts. (3)
Consequently, government agencies sometimes decline to support, or may even
resist, private enforcement initiatives.

Citizens, on the other hand, often suspect government
agencies of not properly fulfilling their enforcement responsibilities.Citizens may view government employees as
overly susceptible to the influence of the business interests they regulate.
(4) Or they may attribute government inaction to bureaucratic inertia.Either way, agency enforcers often are seen
as overlooking or impeding environmental protection goals. (5)

This tension between government and citizens can result in
improved environmental enforcement.The
government's desire to prevent citizen action it views as disruptive can encourage
agencies to take their own regulatory or enforcement steps.The public's suspicion that government may
not vigorously implement certain laws may prompt the legislature to grant
citizens a statutory right to bring a lawsuit to require the government to
perform its assigned regulatory duties.And in instances when the government insists on inaction, citizen
participation can replace government enforcement.Not only may compliance be achieved, but the government can be
forced to account publicly for its own inaction. (6)

When the interests of the government and the citizens are
similar -- as is often the case -­individuals can fill gaps in government
enforcement caused by resource constraints. (7) The sheer size of the
citizenry, for example, enables individual citizens to monitor compliance
throughout the nation and identify violations an understaffed investigative
agency might miss.An enlightened
government agency can also use citizen volunteers to implement a comprehensive
enforcement strategy.This could both
help the government meet its enforcement objectives and avoid the potential
conflicts that may result from piecemeal enforcement efforts.

Finally, public involvement in enforcement is a logical next
step for democratic political systems that have encouraged public participation
in the creation of environmental statutes and regulations. (8) Allowing
citizens to have a concrete role in implementing the regime they helped to
design strengthens public support for and awareness of environmental
goals.If citizens are denied a role in
enforcement, or if they are not educated about and encouraged to assume a
permitted role, even the most sophisticated system of environmental protection
laws may exist only on paper.Several
countries in Central and Eastern Europe, for example, have for years boasted a
system of stringent environmental controls.Yet these provisions have seldom been enforced by the government. (9)
Nor do these countries have a tradition of citizen participation in public
affairs that can be drawn on to promote or supplement government action.Developing and nurturing a role for the
citizens in enforcement efforts could provide the missing ingredient necessary
to make these countries' environmental protection goals a reality.

On paper, the environmental laws in Central and Eastern
Europe are not dramatically different from those in the United States.Yet the U.S. has been more successful in
implementing and enforcing those laws.One major difference between the two systems is the role of the citizen
in the environmental enforcement process.The public has played an increasingly important role in the U.S. in
forcing industry and government to comply with environmental statutes since the
beginning of the modern environmental movement in the late 1960s.Over two decades of U.S. experience with
citizen enforcement mechanisms have distilled some principles that may be
applicable in other countries as well.Drawing on the experience of the U.S. and of selected other countries
with various forms of citizen enforcement efforts, this paper analyzes various
avenues for public participation in environmental enforcement.

2THE
RANGE OF PUBLIC INVOLVEMENT IN ENVIRONMENTAL ENFORCEMENT

Avenues for
public participation in enforcement are many and varied.Some require special expertise, and some
require only energy and common sense.Some involve working alongside the government, some place the citizen in
the shoes of the government, and some call for citizens to oppose the
government's activities.Some require
extensive financial expenditures, and some cost only time.Separately or in concert, these mechanisms
can help to effectuate compliance with environmental controls.

2.1Collecting
Information for Use in Enforcement

On the most basic level, citizens
can use their eyes and ears to identify areas in need of further regulation and
to monitor compliance in areas already regulated. (10) Individuals are uniquely
qualified for this role.As
ever-present observers in their local communities, citizens are particularly
good at identifying unusual occurrences.They may, for example, notice the presence of an oil sheen on a river,
an unusually serious emission from a smokestack, or the activity of a developer
in a swamp.These occurrences might
escape the government enforcer unfamiliar with community conditions and
unequipped to perform frequent field investigations.Citizen monitoring can occur informally, as a result of chance observations
of individuals in their communities.Citizens can also monitor on a more regular basis through community,
regional, or national environmental organizations.

Such citizen participation in information-gathering and
reporting efforts is critical if enforcement goals are to be met.The sheer size of environmental problems and
the increasing demands on limited government resources combine to make
environmental agencies woefully unequipped to perform all necessary
investigatory and monitoring duties.In
the United States, for example, over 60,000 permits have been issued under the
Clean Water Act alone -- only one of several environmental protection statutes
-- and government funding for enforcement efforts has consistently fallen
throughout the last decade. (11) Government agencies simply cannot take full
responsibility for gathering the information necessary for effective
environmental enforcement.

2.1.1 How
to Assemble Information

2.1.1.1
Physical Observation

Methods of collecting valuable environmental data are
numerous.One way is to gather
information from physical observation.For example, some organizations in the United States have begun
"harborwatch" programs to identify oil spills or other emissions in
local harbors. (12) Others teach citizens to "walk" streams,
identifying locations of pollutant emissions and observing the effects of these
emissions on water quality or indicator species. (13) Although detailed
scientific monitoring of pollutants is too expensive and complex for most
individuals to undertake, certain simple tests (judging the density of plumes
of air pollutants, for example) can be learned by citizens. (14) Violations
identified through these information-gathering activities can then be reported
to environmental organizations or government agencies or can be publicized
through the media.

Because of the benefits that can be gained from citizen
monitoring, government often chooses to promote these activities.Government support may range from
establishing an office to receive reports of violations to providing funding
for citizen groups collecting environmental information.Through such programs, federal and state
government agencies in the U.S. have been able to accomplish monitoring that
would otherwise be impossible by tapping into the time and energy represented
by concerned individuals.

Although many environmental problems are obvious from a
distance, it may be difficult for citizens to acquire detailed information
about threats to the environment that can only be perceived at close
range.Sometimes citizens can take
advantage of public access to natural resources to scrutinize potential
violations.For example, in the United
States, the public is allowed access to rivers, streams, and beaches, and can
use those routes to approach and examine points of pollution emission. (15) If
access via public waters is not possible, a more costly alternative for
obtaining information would be to take to the open skies to monitor pollution
emissions or the management of natural resources from the air. (16)

In most cases, however, the activities that threaten to
violate environmental controls will take place on private property to which
citizens will not have direct access.One approach to encouraging citizen involvement in environmental
enforcement would be to permit citizens to enter private property to undertake
environmental monitoring when warranted by a serious threat to public
health.Another option would be to
allow citizens to assist the government in carrying out its own environmental
monitoring activities.For example,
water quality legislation in Argentina allows private parties who have filed a
complaint about a facility to participate in any inspection of the facility
during the investigation. (17)

Another means of obtaining access to private property for
monitoring purposes is for a citizen to file a lawsuit against an alleged
violator.In the United States, filing
such a lawsuit allows a plaintiff to conduct discovery on topics relevant to
the case -- including, in lawsuits brought to enforce environmental laws, the
extent of the pollution caused by the alleged violator.As part of this discovery process, the court
can order the defendant to admit the plaintiff to its property to collect such
information. (18)

2.1.1.2
Use of Government Information

Citizens can also gather data about environmental violations
through the use of information collected by the government, either through its
own efforts or by means of reporting requirements imposed on polluters.In the United States, for example, many
federal and state environmental regulations require regulated parties to submit
periodic reports about their pollution emission levels or their storage, use,
and discharge of hazardous materials. (19)

In order for the information gathered by the government to
benefit the public, citizens must be afforded access to that information.Several means of citizen access to
government-held data are provided in the U.S. Some U.S. environmental statutes
that impose self-monitoring and reporting requirements also require the data
reported to be made publicly available.In addition, the federal government is subject to a generalized
information access law, under which the public can ask to review or copy
certain information in the possession of government agencies. (20) Finally, for
citizen monitoring to be truly effective, it is important that citizens be able
to compare the monitoring reports against clear compliance standards, such as
individualized permits or regulatory limits. (21) These standards must also be
publicly available.

2.1.2How to
Use Information

Once
citizens have gathered environmental data and sifted through it to identify
violations, they may put their information to a number of uses.One possibility would be to approach the
violators directly in an attempt to induce voluntary compliance.Publicizing the violations in the press or
through community meetings could create pressure on industrial polluters to
comply.

The citizens could also choose to alert the government to
their findings.In the United States,
most state and federal agencies are set up to receive information reported
through both formal and informal citizen monitoring. (22) Of course, there is
no guarantee that agencies can or will act on the report of a citizen.If the government decides that enforcement
proceedings are warranted, however, information gathered by citizens -- or
testimony about observations by citizens -- may be used in court as evidence
against the violators.Under some U.S.
statutes, if the information provided leads to a criminal conviction or civil
penalty, the government may reward the reporting citizen with up to $10,000.
(23)

Alternatively, citizens may be able to use the information
they have collected by going to court themselves to enforce environmental
controls. (24) For example, after collecting and analyzing a large volume of
water pollution reporting data, one U.S. environmental organization filed a
series of lawsuits against industrial polluters who were violating toxic
discharge limits contained in their permits.This concerted litigation effort was largely responsible for the initial
growth of citizen suits in the United States in the mid-1980s. (25)
Considerations relevant to determining how citizens might be able to advance
environmental enforcement goals through the court system are discussed in more
detail in Section 3 of this paper.

2.2Participation
in Government Regulatory or Enforcement Action

A second avenue of citizen
involvement in environmental enforcement enlists the resources of citizens to
complement agency regulatory or enforcement efforts.In this context, the government will have chosen a particular
vehicle for accomplishing environmental protection goals, and the citizen will
bring his or her viewpoint to bear in ensuring that the government's actions
are as well-informed and effective as possible.

2.2.1Commenting
on Regulations and Permits

A
government agency charged with administering an environmental statute may have
decided to issue a regulation setting specific standards by which to achieve
the goals spelled out in the law.Or
the agency may have already established such standards, and it may be working
within them to determine the content of a particular polluter's environmental
permit.Allowing the public to comment
on proposals for regulations or on the terms and conditions of permits may aid
in future enforcement activities.The
public can contribute practical knowledge of real-world conditions that will
help the agency to devise rules or issue permits that are feasible and
effective.In addition, the public can
review the regulations and permits with an eye towards future enforcement
efforts and ensure that the regulations and permits contain clear standards and
procedures that will ensure simple and effective enforcement. (26)

2.2.2Participating
in Government Enforcement Actions

If
the government has chosen to bring an enforcement action against an alleged
polluter, a citizen can still play a role in the enforcement process.Several mechanisms exist in the United
States that permit citizens to make their views known during enforcement
proceedings.For example, citizens may
intervene in suits brought by the government against potential violators.By joining a lawsuit as an interested party,
a citizen would not have primary responsibility for prosecuting the case, but
could still take part in negotiations and make his or her perspective known to
the judge.Because the court may be
reluctant to strain judicial resources by allowing unrestricted participation
in the lawsuit, the right to intervene might normally be limited to citizens
with tangible interests in the outcome of the case. (27) However, most U.S.
environmental statutes that authorize citizen enforcement suits also grant
citizens the right to intervene in government enforcement proceedings. (28) In
any event, even citizens with purely ideological concerns can participate in a
case by filing non-binding amicus curiae, or friend-of-the-­court,
briefs setting forth their positions.

2.2.3.Reviewing
the Terms of Consent Decrees

Finally,
the filing of a lawsuit, or even the threat of a lawsuit, by the government
will typically lead to negotiations between the government and defendant.In many cases, the parties can agree on a
settlement without resorting to a court adjudication.In enforcement actions, these agreements, called consent decrees,
are usually entered with the court as a sort of contract between the parties
and have the same enforceable effect as a court judgment.If a citizen has intervened in the case,
that citizen will be a party to the consent decree and will be involved in the
settlement negotiations. (29) Even when a citizen is not actively participating
in the case, the government prosecutor may be required to publish the proposed
consent decree and request public comment on the decree. (30) Any comments by
the public on the decree can be filed with the court, which will take them into
account in approving or rejecting the agreement.

2.3Recourse
to Courts When Government Is Unwilling or Unable to Act

A third category of citizen
involvement consists of instances in which the public may seek direct access to
the courts to accomplish environmental enforcement objectives.For example, citizens may go to court to
prompt tardy government regulatory action.The defendant in such a case would be the responsible government agency,
in its capacity as a regulator.

Alternatively, citizens may mount enforcement actions
against violators of environmental controls when the government lacks the
desire or the ability to prosecute. In
the course of its operations, the government itself may engage in conduct that
harms the environment.This is
particularly true in countries, such as the post-communist nations in Central
and Eastern Europe, in which industry and property ownership have been
nationalized.Therefore, the defendant
in an enforcement suit could be either a private party or a government agency
acting in its proprietary, rather than its regulatory, capacity.

2.3.1Lawsuits
Pressuring Agencies to Regulate

2.3.1.1
Non-Discretionary Agency Decisions

Most environmental protection statutes in the United States
set forth general goals or objectives, while delegating to an administrative
agency the responsibility of implementing those general goals through
regulations and the issuance of permits.For example, a statute may direct that discharge of toxic pollutants
into surface waters be reduced by a certain percentage, and it may charge the
agency with the tasks of defining which pollutants are covered by the directive
and approving plans to achieve the specified goal.If the agency does not perform its obligations under the statute,
the target set forth in the law will never be achieved.One essential role of citizens may be to
ensure that agencies carry out the tasks the legislature has assigned to them.

Citizens could be permitted to fulfill this role in several
ways.One way would be to allow
citizens to go to court to force agencies to perform their specific statutory
assignments.Several U.S. environmental
statutes contain provisions allowing citizens to seek judicial review of an
agency's failure to act as the legislature has instructed. (31) These
provisions permit "any person" to bring suit against an agency for
failure to perform an act or duty which is not discretionary under the statute
-- i.e., for not doing something that the statute says the agency
"shall" do. (32) The citizen must notify the agency before bringing
the suit to give the agency an opportunity to avoid litigation by performing
the required regulatory action.If the
citizen wins the suit, the court may order the agency to perform the act or
duty it has delayed. (33)

2.3.1.2
Discretionary Agency Decisions

Although the mechanisms described above allow citizens to
require government action in cases where the legislature has mandated it, they
do not necessarily extend to situations in which the decision whether or not to
regulate is within an agency's discretion.Nor do they allow citizens to prescribe the content of the regulatory
action taken by the agency.In the
United States, citizens can challenge discretionary agency decisions about
whether and how to regulate, either under particular environmental statutes or
under a generalized act governing the procedures to be followed by
administrative agencies. (34) However, prevailing in these discretionary suits
is difficult.Typically, an agency's
substantive decision will be reversed only if it is found to be "arbitrary
and capricious" or if it is "contrary to law." Courts have
interpreted the "arbitrary and capricious" requirement as warranting
reversal of an agency action only when the action lacks any reasonable basis in
fact.Moreover, U.S. courts tend to
defer to agency decisions in matters within the regulatory expertise of the
agency.Courts will even defer to a
"reasonable" agency construction of the statute the agency is
administering, barring clear statutory language to the contrary. (35)

Even though it may be difficult for citizens to succeed in
such suits by challenging the substantive outcome of a discretionary agency
decision, challenges to the method by which the agency reached its conclusion
may be more promising.Experience in
the United States has shown that courts will defer to agencies' substantive
decisions, but only if they are sure that the agency has taken a "hard
look" at the available options.If
the decision making process appears sloppy, or if the views of certain
constituencies have been entirely ignored, the court may find that the agency
has acted in an "arbitrary and capricious" manner.The threat of citizen challenges to
discretionary decisions is thus an effective means of ensuring that agencies at
least consider the perspective of the public in their decisions. (36)

2.3.1.3
Enforcement Decisions by the Agency

In the United States, the reluctance of courts to infringe
on the discretion of government agencies has also precluded the public from
contesting an agency's decision not to take a particular enforcement
action.Federal and state agencies in
the United States enjoy the doctrine known as "prosecutorial
discretion," which leaves the decision whether or not to enforce a
requirement against an individual entirely to the judgment of the prosecuting
party. (37) Even though citizens cannot force agencies to take enforcement
action, they may be able to take on the role declined by the agencies and sue
the violators themselves. (38) These citizen enforcement actions are discussed
in Section 2.3.2 below.

If
the government has made clear its intention not to prosecute, or even simply if
a citizen has a personal stake in a matter that a remedy provided under an
environmental statute cannot adequately satisfy, the citizen may decide to
enforce environmental controls against a violator.In the United States, citizen enforcement of environmental
controls can be pursued directly by means of citizen suit provisions contained
in particular environmental protection statutes.

Even in the absence of a statutory authorization of citizen
suits, opportunities exist for citizens to obtain judicially-enforced sanctions
against industrial or government polluters.Countries with systems of rights and remedies that have evolved from a
tradition of case-by-case adjudication, such as the United States or Great
Britain, offer "common law" causes of action to protect against or
redress environmental harms.And in
other countries whose legal system is based on a civil code, that code may
provide general environmental rights that can serve as the basis for judges to
remedy environmental harms in particular cases.

2.3.2.1"Citizen
Suits" or "Enforcing Suits"

One
method of harnessing the energy and commitment of citizens to effectuate public
environmental protection goals is to authorize citizens to enforce
environmental laws and regulations.In
the United States, most environmental statutes contain "citizen suit"
provisions enabling citizens to prosecute violators of the statutory regime.
(39)

Such citizen suit provisions have their roots in over two
hundred years of U.S. law.Since 1790,
United States citizens have been able in limited cases to sue to vindicate
certain public rights -- those granted by statute to the population as a whole.
(40) These citizen suits have been used to enforce federal regulations in
diverse areas ranging from antitrust to consumer protection. (41) Citizen suit
provisions are said to create "private attorneys general," for they
confer upon the individual the right to enforce public laws against other
citizens.

Although the concept of a citizen suit is not new, the
statutes permitting citizen enforcement of environmental laws and regulations
are unique.In most other areas where
citizen suits are permitted, a personal economic interest, such as an interest
in correcting unfair competition or preventing fraud, must coincide with the
claimed public rights.In citizen suits
brought under environmental protection statutes, however, there is no such
personal economic stake in the outcome.The environmental statutes truly provide citizens with the authority to
represent the interests of the public.Environmental citizen suits, in their strongest form, might even be
characterized as permitting citizens to sue on behalf of the environment
itself.The United States is almost
unique in this grant of power to the private citizen: Few other nations have
extended such rights. (42)

The U.S. Clean Air Act (CAA), enacted in 1970, was the first
federal environmental statute of the modern era with a citizen suit
provision.The CAA provision's
underlying structure is the basis for citizen suit clauses in almost every
other major piece of federal environmental legislation.Today, citizens can bring suit against
private parties and government for violations of certain sections of statutes
regulating air, water, toxic waste, endangered species, mining, noise, the
outer continental shelf, and more. (43) Under many statutes, the remedies
available to the citizen are equivalent to those granted to the federal agency
charged with administering the statute. (44)

The basic citizen suit provision permits any
"person" (including an individual, organization, or corporation) to
sue any other "person" (including the United States) who is violating
the requirements of the given Act.Before filing suit, a citizen must notify state and federal agencies as
well as the alleged violator that a lawsuit is impending.This notice provision serves an important
purpose, because the threat of a citizen suit often prompts the violator to
halt its violations, or at least to negotiate with the potential
plaintiff.As long as the violation
continues and the state or federal government is not pursuing a "diligent
enforcement" action against the alleged violator in court, a lawsuit may
be filed.Once the suit is filed, the
government has no power to dismiss it, and may affect the outcome only by
intervening in the case.

If the citizen wins, the court may order the defendant to
stop the violating activities.In
certain circumstances, the court costs and attorney fees associated with
bringing the action may be awarded to the plaintiff.Some statutes allow the plaintiff to ask the court to impose
civil penalties upon the violator, payable to the U.S. Treasury. (45)

2.3.2.2
Common Law or Civil Code Suits

Even in the absence of mechanisms for enforcing specific
environmental controls set forth in a system of statutes and regulations,
citizens can still achieve environmental protection objectives in the
courts.Both common law systems such as
that in the United States and the civil code systems that prevail in many other
countries provide latitude for judicially-developed methods of remedying
environmental harms.Under these
systems, environmental controls are not enshrined in statutory or regulatory
standards, but are developed on a case-by-case basis by courts applying general
legal principles to the facts of each lawsuit.A receptive judiciary can employ the flexibility inherent in such
systems both to offer citizens redress for environmental degradation that
injures them individually and to correct harms to public environmental
interests.

2.3.2.2.1
Common Law Suits

Prior to the adoption of recent environmental statutes in
the United States, the only way in which a private citizen could prevent
environmental harm through the courts was by exercising his or her rights under
common law.These rights are based on
precedents set during centuries of case-by-case adjudication in Great Britain
and the U.S. They allow individuals to counteract harms caused by the behavior
of others by seeking compensation for those harms and/or obtaining a court
order halting the offending behavior.Even with the advent of statutory citizen suit provisions, common law
causes of action continue to provide an important mechanism for achieving
environmental protection goals.

Most common law environmental claims require some injury or
threat of injury to the plaintiff's person or property.The most common "environmental"
common law action is that of private nuisance.A person suffering a "substantial and unreasonable interference
with the use and enjoyment of an interest in land" can bring a private
nuisance suit.For example, a property
owner could sue a neighboring factory for emitting dangerous or even annoying
fumes that permeated his or her property.Another common law claim for injury to property is trespass, which
requires an actual physical invasion of the property's limits.A fuel storage facility whose tanks leaked
oil that flowed into a neighbor's fish pond might be liable to the pond-owner
in a trespass suit.

Common law actions can compensate for injury to one's person
as well.For example, someone who lives
near a toxic waste dumping site, and who becomes sick from fumes emanating from
the site, may be able to sue the owner of the site on the basis of that
injury.If the plaintiff joins together
in one lawsuit with other citizens living near the site who have suffered the
same damage, the resulting "class action" lawsuit can have a
significant effect on the polluter's behavior.

The potential strength of such common law suits as a weapon
in the environmental enforcement arsenal stems from the financial costs they
can impose on a violator.Common law
claims are the only avenues through which individuals can recover for damage to
themselves or their personal property.And damages awarded in such suits in the U.S. can be substantial. For example, a potential court judgment for
personal injury resulting from toxic pollution could include compensation for
medical expenses, lost wages, and diminished earning capacity.Damages in a common law suit involving a
newborn baby who will be permanently disabled by injuries caused by the
defendant's polluting activities could easily amount to millions of dollars.
(46) The threat of a sizeable award of damages can substantially strengthen a
citizen's power to trigger compliance -- it can deter potentially polluting
activities and force industry to pay attention to citizens' claims.

The common law actions described are aimed primarily at
correcting violations of individual rights.By fining a defendant for such violations, or by ordering a halt to the
offending activity, they can lead to broader environmental benefits as
well.The common law also provides
mechanisms through which citizens can vindicate public, rather than private,
rights.These doctrines generally
require that the plaintiff share some personal stake in the "public"
goal pursued in the suit; moreover, they do not allow the plaintiff to recover
money damages from the defendant unless the plaintiff has suffered injury to
his or her person or property.Nonetheless, the doctrines of public nuisance, public trust, and certain
broad statutory mandates reveal some of the possibilities inherent in the
flexibility of judge-made law.,

Public nuisance involves interference with public rights
such as the right to health, safety, or comfort.Traditionally, only the government could sue to protect these
rights.Recent developments, however,
allow suits by individuals who suffer "special injury" different in
kind from that suffered by the rest of the public. (47) A second common law
action that recognizes communal rights is known as the "public trust"
doctrine.This doctrine posits that the
government must hold public lands and natural resources in trust for the use
and enjoyment of the citizens.If the
government fails to consider this trust in its management and maintenance of
resources like navigable waters, fisheries, or parklands, individual citizens
may sue those in control of the lands. (48) While the doctrine is, at first
glance, not applicable to privately-owned land, some state and federal courts
have hinted that a regulatory or contractual link between the landowner and the
government may be enough to bring the doctrine into play and to render the
landowner liable for environmental harms. (49)

Finally, some U.S. states have explicitly recognized public
rights to environmental quality in their statutes and constitutions.Most constitutional provisions have been
ineffective, because they do not permit citizens to sue for the violation of
their constitutional environmental rights.Michigan's unique Environmental Protection Act, adopted in 1970, has
been more successful.The Act permits
any person to sue any other person "for the protection of the air, water
and other natural resources and the public trust therein from pollution,
impairment or destruction." (50)It grants courts broad powers of review of both individual and agency
actions, and permits orders altering or halting the harmful activities unless
there is no "feasible and prudent alternative consistent with the
reasonable requirements of the public health, safety, and welfare."
Michigan courts have interpreted the Act as conferring upon them the
responsibility of creating "the equivalent of an environmental common
law." (51)

2.3.2.2.2
Civil Law Suits

Civil code countries also offer judicially developed
remedies for environmental harms.In
civil code countries, standards governing environmental quality are codified,
and judicial precedent is not as important as it is in common law systems.At the same time, however, code provisions
relevant to environmental quality are usually general in nature, and thus are
open to interpretation by judges applying the provisions in particular cases.

Most civil code standards that can protect environmental
quality are similar to those available under common law, especially those
actions preventing or recovering for harm to property or person. (52) Many
civil codes also contain provisions that appear to go further than the common
law in granting individuals the right to enforce public environmental
interests.For example, Hungary's code
allows individuals to sue others for violating an obligation not to behave so
as to disturb others needlessly, "especially neighbors." The
"neighborhood" encompassed by this provision is not restricted to
property immediately adjoining the site of the polluting activity, but includes
anyone affected by the pollution. (53)

In Colombia, the civil code provides for "popular
actions," which permit citizens to sue for damages to communal
environmental rights. (54) And in Argentina, courts have made use of a
constitutional guarantee called amparo, which can be loosely translated
as "protection," to defend individual or collective environmental
rights derived from statutes, international treaties, or the constitution
itself. (55)

3THE
STRUCTURE AND FUNCTION OF COURT ACCESS MECHANISMS

The court actions described above
can be potent methods of achieving environmental compliance.They may not be appropriate in every case,
however.For one thing, going to court
will not always be a feasible option.Mounting a private lawsuit is a costly undertaking.It will probably require hiring an attorney,
paying court filing and transcription fees, generating and duplicating legal
briefs and other documents, and conducting extensive discovery to assemble the
facts necessary to prove one's case.These efforts may exceed the capability of a private citizen.

Frequent recourse to litigation as a method of achieving
environmental compliance can pose societal disadvantages as well.Some commentators in the United States have
complained that public interest lawsuits create a logjam in the courts and
strain overtaxed judicial resources with frivolous or peripheral claims.Others claim that promoting litigation as a
preferred alternative for citizen involvement in environmental enforcement
creates an atmosphere of adversarial hostility that may discourage future
cooperation.

Despite these potential limitations, the ability of citizens
to obtain judicial relief from environmental harms can be a valuable
enforcement tool.First, citizen access
to court remedies improves the quality and fairness of the enforcement
process.Allowing citizens into court
helps to guarantee that other important players in the political system -- such
as industry and government -- will give citizen viewpoints their due.Without such a guarantee, the voices of
citizens advocating environmental protection may be drowned out.For example, a large business engaging in
polluting activities may be inclined to disregard the views of local citizens
who want to impose pollution curbs.The
government, in turn, might give citizen comments during regulatory proceedings
less weight than those of industry, whose lobbyists may be more vocal and
well-financed and who may have developed ties to the regulators.

Citizen suits can serve as the microphone that helps citizen
views to be heard.Before the court,
all litigants are equally deserving of a fair hearing in each case.A citizen with access to a court action can
invoke the power of the judiciary in the service of her cause.The availability of an enforcement suit
enables individuals and organized citizen groups to secure treatment as equals
by government and industry.Opening the
courthouse door to citizens thus promotes the rule of law over the rule of
politics and advances the common goal of environmental protection.

Enabling citizens to implement environmental protection
objectives in the courts also reinforces other forms of citizen participation
in environmental enforcement.For
example, citizens may prefer to focus primarily on participation in government
regulatory or permitting processes in the ways discussed in Section 2.2.1
above.The knowledge that citizens can
challenge the government's outcome in court may increase the agency's
attentiveness to such comments and enhance the usefulness of the public's
efforts.Ensuring that citizens will be
heeded increases the value of their message, whatever mechanism they may choose
to convey it.

Finally, allowing citizens to sue can have concrete effects
on a society's progress towards implementing environmental controls.Actual litigation need not even occur in
order to achieve this result.The very
possibility of an enforcement suit against a violator may be sufficient to
trigger compliance, influence industry to enter into a negotiated agreement
with the citizens, or otherwise induce a polluter to alter his behavior, thus
obviating the need to sue at all.Experience in the U.S. with citizen suit provisions has revealed that
the mere notification to a violator that a citizen intends to sue often prompts
the potential defendant to cease the violations.

3.1Why Sue?

Whether a citizen will need to have
recourse to the courts, and if so, through what mechanism, will depend on what
that citizen hopes to achieve.For
example, a citizen may be motivated to respond to environmental harms by
seeking money for herself or for the government.The citizen may want the government to take some sort of
regulatory action.Or she may simply
want to put a halt to the polluting activity.

Given the cost and effort involved in bringing suit,
citizens may prefer to explore other methods of attaining their
objectives.For example, a civic group
targeting permit violations by a local industrial water polluter might first
try to induce voluntary compliance by confronting the polluter directly.If that effort did not succeed, the group
could approach the local media with information it had collected about the
violations, hoping to embarrass the polluter into compliance.An alternative step might involve forwarding
evidence to the government for enforcement action.

If these various approaches were not successful, the civic
group could file a court complaint against the polluter under an environmental
statute containing a citizen suit provision.Even that course of action might well stop short of a trial or other
judicially determined outcome.Merely
notifying a polluter or a government regulator that a lawsuit is impending, as
most citizen suit provisions require, often triggers "voluntary"
compliance by the polluter or regulatory or enforcement action by the
government.The prospect of court
action may also prompt the parties to settle the case between themselves rather
than engaging in expensive and time-consuming litigation.Settlement substitutes a definite, certain
result for the unpredictable risks of a trial. (56) In the United States,
litigants have found this trade-off appealing: over 90 percent of the lawsuits
filed in the United States are resolved without a trial. (57)

3.2What Kind of
Lawsuit to File?

The objective of a potential citizen
plaintiff -- the legal "remedy" the plaintiff desires to obtain --
will determine both the range of available litigation strategies and the way in
which the case will proceed.A
political system is likely to impose controls on a citizen's access to remedies
that will vary with the nature of the remedy itself.The structure imposed by the government, in turn, will influence
the citizens' enforcement strategies.This section surveys the various methods in which a citizen may be able
to achieve a particular enforcement goal.

3.2.1Lawsuits
to Obtain Money Damages

3.2.1.1
The Nature of the Remedy

One goal of a citizen lawsuit might be financial
compensation to the citizen for environmental harm caused by a polluter.It may be appropriate to set relatively
strict limits on the ability of a plaintiff to obtain such compensation.Those responsible for designing and
implementing a system of judicial enforcement may decide that financial
benefits should only accrue to someone who has actually suffered from the
complained-of harm.

In the United States, for example, a litigant seeking money
damages for environmental harms is limited to the common law causes of action
described above in Section 2.3.2.2.1, which generally require an actual injury
to the plaintiff's person or property.The U.S. government has chosen not to supplement that avenue with a
statutory damages remedy.Because
citizen suits under environmental statutes are designed to vindicate public
rather than private rights, they do not allow plaintiffs to recover any
personal damages for violations of environmental laws and regulations. (58)

3.2.1.2
The Elements of the Case and the Method of Proof

In order to win damages in a suit at common law, a plaintiff
is required to establish several elements. The plaintiff must prove that the defendant has violated an
expected standard of conduct -- by intentionally or negligently acting in a
manner likely to result in harm, for example.The plaintiff must also establish that the defendant's behavior has caused
actual damage to the plaintiff.This
element of causation can be especially difficult to prove.In the case of injury to health resulting
from toxic pollution, a plaintiff may have to supply scientific evidence and
analysis establishing a physical link between the particular polluting activity
and the harm.The long latency period
that may intervene between a release of toxic substances and the manifestation
of a resulting injury contributes to the difficulty of proving this element.
(59)

In a private nuisance lawsuit, a plaintiff would also be
required to establish that the harm resulting from the defendant's conduct
outweighs the social utility of the polluting activity.This too can be a heavy burden, because it
may force the court to weigh the plaintiff's right to grow crops that are free
from pollution damage against the community's desire to retain the jobs created
by the defendant's polluting factory.

In some instances, a system of government might conclude,
the public interest warrants reducing the burden of proof on a plaintiff
seeking financial compensation for harms caused by polluting activities.In the United States, courts responsible for
developing and interpreting the common law have made several such
adjustments.One example is the creation
of different rules of liability for what courts have determined are
"abnormally dangerous activities," such as the transportation of
hazardous waste.Courts have concluded
that the defendant conducting abnormally dangerous activities has voluntarily
taken on the risk of causing harm to others.The defendant thus should be "strictly liable" for the
resulting damage, even when the defendant's actions were not negligent or
intentional.

Judicial rules can also lessen a plaintiff's burden of
proving the causation element of a common law damages case.For example, a judicially established
presumption that certain kinds of polluting activity cause certain kinds of
physical damage might allow a plaintiff to recover without proving conclusively
that the defendant's practice was the actual cause of her injury. (60)

The existence of statutory or regulatory environmental
standards can assist a plaintiff as well.Federal or state statutes regulating toxic chemicals may serve as
evidence of the chemicals' toxicity.In
addition, violation of the regulatory requirements can demonstrate negligence
on the part of the defendant.Similarly, "right-to-know" laws often require companies to
reveal to workers and communities the dangers associated with any toxic
chemicals that the companies store, use, or release.A judge may conclude that this statutory reporting requirement
assigns to the defendant a duty to warn the plaintiff of known hazards, and
that violation of the requirement breaches that duty. (61) Environmental
standards enacted by the legislature and refined by administrative agencies can
thus influence the development of judge-made law.

3.2.2 Lawsuits
to Halt Violations

3.2-2.1
The Nature of the Remedy

A plaintiff whose desired remedy is a court order requiring
a polluter to stop the polluting activities may be offered more avenues for
judicial relief and may face fewer hurdles to recovery.In the United States, this form of remedy is
termed an injunction.It is the most
likely outcome of a successful suit to enforce public rights, either under the
common law or under an environmental statute.An order barring or otherwise limiting future environmentally harmful
activity may also be the outcome of an environmentally-based suit in a civil
code system.

3.2.2.2 The Elements of the Case and the Method of Proof

Injunctive relief may be sought in an action at common law
to enforce either private or public rights.In such a case, liability will be established in the manner discussed in
Section 3.2.1 above. A citizen can also
seek an injunction by suing under an environmental statute that contains a
citizen suit provision.

In cases in which the citizen is acting as the enforcer of a
federal statute by asking a court to prohibit behavior that violates the statute's
terms, the citizen's burden of proof in court may be lighter than that required
in a common law action for damages.In
most cases, the citizen may need to prove only that certain statutory or
regulatory controls or limitations are in force and that the defendant has
failed to adhere to them. (62) In actions brought to enforce statutes that
require regulated entities to report regularly to the government on their
regulated activities, such as the U.S. Clean Water Act, proof might consist
simply of the defendant's own reports.These reports may reveal violations of applicable emission limits or
permit conditions.

In establishing the requirements governing the conduct of a
statutory citizen suit, a government may want to ensure that citizen suits
encourage, rather than impede, both voluntary compliance and government
enforcement efforts.Therefore, most
citizen suit provisions in U.S. environmental statutes contain notice
requirements and "diligent prosecution" limitations.

Before a citizen suit may be filed under a U.S.
environmental statute, advance notice of up to 120 days must be given both to
the alleged violator and to state and federal environmental officials. (63) The
notice to the alleged violator allows it to examine its own record, to enter negotiations
for settlement, or to come into compliance before being faced with the legal
requirements that come with the filing of a lawsuit.If the defendant halts the offending actions upon receipt of
notice, then the plaintiff may no longer file the lawsuit.

The notice provision also places some check on the ability
of citizens to bring suit.If state or
federal agencies would rather prosecute the violation themselves, the notice
allows them an opportunity to do so, thereby preventing the citizen from filing
suit.The statutes prohibit citizens
from filing enforcement suits if the government is "diligently
prosecuting" a case against the alleged violator. (64)

Once the citizen plaintiff has proved a violation of law,
she must still establish her entitlement to injunctive relief.Traditionally in the United States, a court
asked to issue an injunction must first balance the plaintiff's need for the
injunction, the harm the injunction might cause the defendant, and the effect
of the injunction on the public interest.The outcome of this balancing process is likely to depend on the nature
of the right the plaintiff is seeking to enforce.

In a lawsuit brought to enforce an environmental protection
statute, the very enactment of the statute supplies a presumed public interest
in environmental protection.In
addition, the remedy requested confers a public, not a private, benefit.Indeed, some U.S. plaintiffs have argued
that if an environmental statute is violated, a court must issue an
injunction. (65) The present consensus, however, is that most U.S. statutes
merely require that a court bring about compliance, and endow the court with
the discretion to select the appropriate method of achieving that goal. (66)
This process often involves a judicial balancing of the private interests
involved, but with an overall eye to the public interest in preventing
environmental damage.For example, a
judge might not close down a polluter on the basis of a minor permit violation,
but might rather impose on the violator a deadline for attaining compliance.

A similar application of the balancing approach is likely in
a common law suit to enforce a public right, such as a suit based on public
nuisance or the public trust doctrine.Injunctive relief is also available in a common law cause of action
brought to redress a private environmental injury, such as a private nuisance
suit.However, because there is no
presumed public interest in the outcome of such an action, and because a private
common law action is brought for the personal benefit of the plaintiff rather
than in the public interest, it may be difficult for a private common law
plaintiff to obtain injunctive relief.Instead, a court may decide that an award of damages adequately
compensates the plaintiff for any injury sustained. (67)

3.2.3Citizen
Enforcement Suits Seeking Civil Penalties

3.2.3.1
The Nature of the Remedy

Another potential remedy that can shape the course of
litigation is the imposition of monetary penalties on a violator.These penalties, payable to the government,
are designed to punish the violator, to eliminate any profit earned by the
violator due to the polluting activities, and to compensate for the
environmental harms caused by the violator's actions. (68) The imposition of
monetary penalties has traditionally been reserved for government enforcement
agencies.In the United States,
however, a limited number of environmental statutes contain provisions allowing
citizens to seek civil penalties in suits brought to enforce the statutes.Because this remedy provides a public
benefit, it is not an available remedy in U.S. common law actions.In statutory enforcement lawsuits, the requisite
cause of action and burden of proof for recovery of civil penalties are the
same as for other statutory citizen suit remedies.

The U.S. Clean Water Act and Resource Conservation and
Recovery Act have included civil penalty provisions in their citizen suit
clauses for several years, and a similar provision was added to the Clean Air
Act in 1990. (69) While the United States government can request civil
penalties under many other statutes, (70) only these three acts also permit
citizens to request that the penalties be assigned.In some environmental laws these statutory penalties can amount
to $25,000 per day, per violation. (71)

By permitting individual plaintiffs to request civil
penalties ranging into the millions of dollars, the citizen suit provisions
have granted the public significant power over alleged violators.This power has caused heated debate in the
United States.Supporters argue that
plaintiffs will initiate suits only if they have enforcement powers equivalent
to those of the government.The ability
of citizens to seek civil penalties can improve their bargaining position in
settlement negotiations, and may increase the overall success of citizen
enforcement programs.Permitting civil
penalties in citizen suits also equalizes the enforcement powers of government
and the citizen.This equality ensures
some consistency in enforcement practices, treats violators equally, and
prevents violators from evading full enforcement by "shopping" for
citizen rather than government enforcement actions.

Those who oppose allowing citizens to request civil
penalties claim that conferring this power on citizens invites abuse and
threatens to undermine the traditional structure of government.In the view of these critics, suits for
civil penalties serve the national interest in law enforcement, an interest
traditionally confided to the jurisdiction of the executive branch of
government.Assignment of the power to
exact civil penalties to anyone other than an executive branch official thus
arguably violates the constitutionally-established balance of powers among the
branches of the federal government. (72)

In several citizen suit settlement agreements under the
Clean Water Act, the alleged violators have avoided the infliction of civil
penalties by instead paying a sum of money to a third party environmental
organization or to an otherwise environmentally beneficial project.For the parties, these are win-win
arrangements.The defendant pays less
than it might have had to in civil penalties, and the citizen plaintiff (or
environmental organization) benefits indirectly through the payment of funds to
a "public interest" organization.

To critics, these "environmentally beneficial
expenditures" suggest extortion, draw funds away from the U.S. Treasury,
and diminish the overall level of environmental enforcement. (73) The federal
government has looked upon settlements involving third-party payments with some
suspicion, and carefully examines consent decrees containing payments to
environmental organizations.However,
courts have upheld consent decrees containing such payments. (74)

"Environmentally beneficial expenditures" have the
potential to aid in achieving environmental compliance.The availability of such third party
payments may encourage defendants to enter into settlement agreements.Because these payments can be characterized
as "voluntary," in contrast to the coercive and punitive aspect of
civil penalties, they may be relatively palatable to defendants.On a symbolic level, an agreement to pay
environmentally beneficial expenditures does not brand the contributor as a
guilty party as civil penalty payments might.Such expenditures offer financial advantages as well: Unlike civil
penalties, they may be tax-deductible as business expenses. (75)

Civil penalty assessments have had an important effect on
the number and effectiveness of citizen suits in the United States.The ability to request civil penalties
improves the citizen's bargaining position.It offers citizen plaintiffs a simple means of punishing and deterring
future violators.As suggested by the
large number of citizen enforcement cases under the Clean Water Act, these
effects, in combination with clear standards and self-reporting requirements,
make the civil penalty provisions a significant incentive to bring citizen
suits. (76)

3.2.4 Suits to Influence Government Action

3.2.4.1
The Nature of the Remedy

Finally, the remedy a citizen litigant may desire is the
accomplishment of a particular regulatory action by the government.The plaintiff may hope to force the agency
to perform a task the legislature has assigned to it.In such cases, barriers to suit will likely be minimal, because
the private party is simply forcing the agency to initiate an action the
legislature has already endorsed, not attempting to dictate the way in which
the action should be carried out or the action's end result.

3.2.4.2
The Elements of the Case and the Method of Proof

In the United States, a litigant seeking to trigger a
non-discretionary agency action will need to establish only the existence of a
statutory duty and the agency's failure to perform that duty. (77) In cases in
which the litigant is attempting to influence the content of agency action,
however, more deference to the agency's presumed regulatory expertise may be
warranted.In practical terms, this
deference will be carried out through the standard of review a court employs in
assessing the challenged agency action.As discussed in Section 2.3.1.2 above, it is likely that a U.S.
plaintiff taking issue with discretionary agency action will have to convince a
court that the action was "arbitrary and capricious" -- a standard
difficult to meet.Even though judicial
review of substantive agency action does not often succeed in overturning an
agency's result, it may force the agency to be more careful about the
procedures it employs in reaching that result.

3.3Who Should Be
the Parties to the Suit?

An important consideration for a
political system setting up and administering methods for citizens to enforce
environmental standards in the courts is the identities of the appropriate
plaintiffs and defendants.A society
may want to ensure that a plaintiff who is asserting a public environmental
right will represent that public interest fairly and thoroughly, or that the
judicial branch does not engage in legislative policymaking by deciding cases
in which no real injury has been suffered.In addition, a society may want to make a policy decision about the
range of freedom granted to the government in its non-regulatory
activities.And as a potential
defendant, the government may want to control the instances in which it can be
sued.

3.3.1Plaintiffs
and the Issue of "Standing"

In the United States, courts have
limited the category of plaintiffs eligible to enforce environmental controls
by requiring that the plaintiff possess "standing" to bring the
suit.The standing requirement stems
both from the U.S. Constitution and from judicial interpretation of
environmental statutes containing citizen suit provisions.Under the constitution, as interpreted by
the Supreme Court, plaintiffs bringing a lawsuit must allege that: (1) they
have been or will be injured by the actions or threatened actions of the
defendant; (2) the injury is traceable to the challenged action; and (3) the
harm alleged is likely to be redressed by a favorable decision. (78) These
requirements are supposed to ensure that the judiciary engages only in
redressing actual wrongs, not in the policymaking activities that the
constitution entrusts to the legislative branch. (79) Traditionally, this
standard required an economic injury.For example, if the stream running past an outdoor cafe becomes polluted
by an upstream paper mill, driving away patrons, the cafe-owner would have
standing to sue the mill-owner. (80)

Over the years in the U.S., changing attitudes, the scope of
environmental regulation, and broad citizen suit provisions have altered the
contours of this standing test.During
the inception of the environmental citizen suit movement in the 1970s, courts
found even a plaintiff's allegation of occasional or anticipated aesthetic
injury sufficient to confer standing. (81) For example, a plaintiff might have
alleged successfully that her view of a national park she had visited and
planned to visit again was being impaired by emissions from a regional power
plant.

However, more recently, the constitutional standing test has
been rendered more stringent by courts concerned with reducing the amount of
public interest environmental litigation.In its latest treatment of the issue, the Supreme Court found that
citizen plaintiffs lacked standing to challenge a regulatory action even when they
alleged an injury very similar to the kinds of injuries the Court had found
sufficient just twenty years earlier.Even the fact that Congress had expressly authorized citizen suits under
the statute in question did not alter the outcome. (82) The essential ambiguity
of the constitutional standing principle renders it susceptible to such
restrictive judicial interpretations, and has allowed this requirement to
become a major impediment to citizen enforcement suits in the United States.

The second element of standing in the United States applies
only to citizen lawsuits based on statutory, rather than common law, causes of
action.Traditionally, only the U.S.
government could bring a lawsuit to vindicate public rights vested in the
population as a whole.Through citizen
suit provisions, the U.S. Congress has chosen to extend this right to
individuals.Courts have attempted to
ensure that citizens empowered to sue in this manner are effective advocates
for these public rights by requiring that any injury claimed by the plaintiff
be within the "zone of interests" of the statute in question. (83)
This limits potential environmental enforcement plaintiffs to those who base
their standing on environmental injury.Thus, one cement factory might not be allowed to sue another that was
violating emission standards by claiming that the violations allowed unfair
competition -- the Clean Air Act's zone of interest is air quality, not levels
of competition. (84)

Other countries, however, have not deemed it necessary to
restrict public access to the courts for plaintiffs seeking to redress public
environmental harms.For example, in
Argentina, an environmental lawyer was allowed to challenge certain licenses
granted by the federal government to two Japanese corporations.The licenses allowed the corporations to
capture and export fourteen dolphins from the South Atlantic Ocean, off the
coast of the Argentine province of Chubut.The court concluded that the plaintiff's individual right to the
protection of the ecology, as expressed or implied by several constitutional
and statutory provisions, entitled the plaintiff to challenge the licenses in
court. (85) The court invalidated the licenses, on the grounds that the
government had not examined the environmental impact of the captures, that past
licenses had resulted in the death of the captured animals, and that the
licenses had been granted over the opposition of the provincial government.

3.3.2Defendants
and "Sovereign Immunity"

Implementation
of an environmental enforcement regime will often necessitate bringing lawsuits
against the government, either in its regulatory or in its proprietary
capacity.As a regulator, the
government may be the target of a suit designed to prompt or to challenge its
implementation of statutory objectives.As an owner of property, the government also engages in activities that
may pollute the environment.For
example, the government may operate research laboratories or maintenance
facilities at which hazardous wastes have been stored. (86) In post-communist
regimes in Central and Eastern Europe, where up to 90% of all property is in
government hands, the vast majority of all pollution will be traceable to
government action. (87) Unless enforcement actions can be brought against the
government, environmental protection goals can never be fully achieved.

Yet the government often restricts its own liability in
court.In the United States, for
example, the doctrine of "sovereign immunity" generally prevents
citizens from suing the government unless the government has explicitly waived
that exemption.Such a waiver is found
in several environmental statutes authorizing citizen enforcement suits.A citizen suit under such a statute offers a
private plaintiff a unique opportunity to ensure government compliance with its
own rules and regulations. (88) For citizens to participate fully in the
environmental protection process, the government will need to render itself
accountable in court for the environmental effects of its operations.

3.4How Will the
Suit Be Financed?

The previous discussions' outline
the ways in which court actions can be used to accomplish particular
enforcement goals.Even the most
impressive array of such litigation options is useless, however, if citizens
cannot afford to go to court.The
single most important factor in encouraging citizen suits may thus be the
ability of citizens to recover court costs and attorney fees following the
successful prosecution of a citizen suit.On budgets even more limited than those of state and federal
governments, few citizens could take on the role of private attorney general if
environmental statutes did not contain "fee-switching" provisions.

In the United States, the traditional "American
rule" requires that each party pay its own court costs and attorney fees
regardless of who wins the lawsuit.In
contrast, many other nations require that the losing side pay both sides' costs
and fees (the "British system").Both systems act as a significant deterrent to citizen enforcement suits
that are brought for the public, rather than private interest.Why should an individual bring a suit which,
if won, will offer only a diffuse sense of goodwill from the vindication of the
public interest, and if lost, require the litigant to shoulder the cost of his
own and perhaps (under the British system) the defendant's legal fees?Because of this disparity between private
costs and public benefits, there is a strong argument for altering the
traditional rule in citizen suits brought under environmental protection
statutes. (89)

Under the U.S. environmental citizen suit provisions, for
example, a successful plaintiff may request that the losing defendant pay both
parties' court costs and attorney fees.To discourage frivolous suits, the environmental statutes permit judges
to assess the costs and fees of the defendant against a plaintiff who has
engaged in litigation that is clearly unfounded in law or fact.Some risk to the plaintiff still exists.The plaintiff might lose the case and be
forced to shoulder his or her own expenses, or the suit could be deemed
frivolous and the citizen could be forced to pay the costs of both sides.However, by selecting the most meritorious
and winnable cases, environmental plaintiffs can minimize these risks and
maximize the chance of recovering their own financial outlays.

In some cases, these "fee shifting" provisions
allow plaintiffs to recover more than the lawsuit actually cost.Because courts calculate attorney fees using
the "market price" for environmental attorneys, but most
environmental plaintiffs' attorneys work for well below that price, the final
fee award can be more than the plaintiff actually spent to bring the suit.What results is a windfall -- or at least an
amount better than break-even -- for a winning plaintiff.Successful citizen suit plaintiffs --
particularly environmental organizations -- can channel any excess attorney fee
funds into bringing other lawsuits.The
profits from past wins finance future litigation risks and enable environmental
organizations to maintain a series of citizen suits with less outside financial
assistance than they would otherwise need. (90)

4CITIZEN
INVOLVEMENT IN PRACTICE

Various practical considerations
will influence both citizens' choice among the enforcement mechanisms discussed
in this paper and their ability to employ those mechanisms effectively.Both a government considering how citizen
participation might fit into an overall environmental enforcement system and
the public employing that system once it is set up will need to be informed of
and sensitive to those considerations.

4.1A Citizen's Choice of Mechanisms for
Participation

A citizen's
choice of how to participate will vary with several factors.The most basic is the citizen's own
motivation.Is the problem to be
addressed a lack of applicable standards -­possibly calling for an
agency-forcing suit -- or a perceived failure on the part of the government to
act against violators -- which may be a candidate for a citizen enforcing
suit?A second factor is the role of
the government in the enforcement system.Obviously, if the government is actively proceeding against violators,
there will be little room for citizen enforcement lawsuits, especially in a
system, such as that in the U.S., in which diligent government prosecution
prevents private actions.In such a
situation, a citizen might choose to focus on assisting the government in its
enforcement efforts by engaging in private monitoring or other
information-gathering activities.

The
identity of the citizen -- or the environmental organization -- who wants to
participate in environmental enforcement is also relevant.For example, industry entities who want to
alert authorities to permit violations by particular competitors may choose a
different enforcement mechanism than would a citizen group targeting
industry-wide violations.Another
important variable is the resources available to the individual or entity.A single citizen with no financial backing
may be limited to volunteering his time to monitor compliance, while a large
public interest organization might be able to finance a large-scale
lawsuit.Even a public interest
organization may choose to minimize litigation costs by filing suit only in
cases involving clear-cut violations of demonstrable standards, while leaving
more complicated situations to the government.

The
possibility of combining two or more of these avenues may also influence
citizen involvement in practice.For
example, a private action for damages can be brought concurrently with a
citizen enforcement suit; the damages action may serve as leverage to
effectuate a settlement on the defendant's part.Agency-forcing judicial review suits brought by citizens can help
spur the development of clear and enforceable regulations, indirectly aiding
direct enforcement efforts. (91)

One of the
best examples of the potential for citizen action in environmental enforcement
has been the U.S. experience with the Surface Mining Control and Reclamation
Act of 1977 (SMCRA). (92) Although states, federal agencies, and industry all
resisted implementation of SMCRA, citizens were able, through the use of a
variety of methods, to make the Act a useful and effective tool for
environmental protection.For example,
when SMCRA's regulatory agency rewrote and weakened the statute's implementing
regulations in the early 1980s, citizens challenged the agency's actions in
court.The resulting victories included
limiting the number and scope of exceptions to the Act's standards and
strengthening regulations governing mining in national forests.

In addition
to challenging agency regulations, citizen plaintiffs also sued state and
federal agencies for failing to conduct required investigations, neglecting to
collect fines under the statute, and declining to carry out state
implementation programs.Several of
these lawsuits resulted in settlement agreements or court-ordered remedies that
not only directed the agencies to fulfill their statutory responsibilities, but
made structural changes in the way the agencies enforced the statutes.Finally, citizens worked closely with state
and federal agencies as the agencies developed the new enforcement and
implementation techniques required as a result of the citizen litigation.This broad range of public involvement
improved the enforcement of SMCRA by increasing both the capability and the
desire of the agencies to implement the statute effectively.

4.2Requirements
for Effective Citizen Enforcement

Citizen participation in
environmental enforcement cannot fully succeed without support from other
institutions within the environmental protection system.

4.2.1A Sound
Legal Framework

For
citizen participation to be truly effective, the system of environmental
regulation must provide the mechanisms to accommodate and encourage it.The most obvious such accommodation -- on
which this paper has focused -- is the provision of avenues allowing citizens
to go to court to force agency action, challenge the results of agency
government decisions, or prosecute violators.Even if these avenues are made available, citizens may be able to use
them only if the law includes cost-and fee-shifting provisions like those
mentioned in Section 3.4 above.

Another, less obvious, contributor to effective citizen
enforcement is the establishment of clear standards of conduct against which
the behavior of potential violators can be compared.When a citizen is provided with specific emission levels,
deadlines for compliance, or other definite substantive requirements contained
in statutes, regulations, or permits, it will be easier not only to identify
but to prove the violation.Such
substantive requirements are particularly effective when used in conjunction with
industry self-monitoring obligations, reporting schedules, or other information
access mechanisms.Clear standards can
stem from statutory language, regulations developed by agencies in accordance
with statutory duties, or industry-specific permits issued pursuant to the
regulations.

Perhaps the most essential element in the legal framework is
the existence of a judicial system that is receptive to citizen
participation.On an overall level, a
supportive judiciary can instill in the public a sense that their involvement
is accepted and rewarded, thus increasing public confidence in the enforcement
system.As a practical matter, judicial
attitudes can have a concrete effect on the success or failure of environmental
law suits brought by citizens.Through
threshhold rulings restrictive of citizen standing, for example, judges can
effectively bar the courthouse door to citizen litigants.The extent of judicial damage awards and the
content of injunctive relief also influence the likelihood that citizens will
choose to sue in the future and the kind of cases citizens may bring.

Legal controls provide both the overall framework within
which environmental protection goals can be articulated and a powerful
incentive encouraging the achievement of those goals.A strong legal system thus helps citizens to participate
effectively in environmental enforcement through non-court mechanisms as well
as in the courts.

4.2.2Adequate
Citizen Resources

A
second important requirement for effective citizen enforcement is a citizenry
with the knowledge and confidence to avail itself of its various options for
participating in environmental enforcement.As an initial matter, particularly in societies unused to citizen
participation, some effort may be necessary to educate the public about those
options and how to use them.Both
government and environmental organizations could sponsor such a public
education program.

Environmental organizations can play a crucial role in other
ways as well.Because the costs of
prosecuting citizen suits or monitoring industries on a regular basis are so
high, individuals act on their own only rarely, particularly in court cases.
(93) More often than not, environmental organizations or "public interest
law firms" are the only actors with the resources and expertise to pursue
citizen suits and many other associated enforcement actions. (94)

Providing some form of incentives -- whether financial or
otherwise -- for citizens to participate in environmental enforcement could
encourage and enable individuals and small local groups, as well as large-scale
organizations, to increase their involvement.One possibility would be for the government to support citizen
monitoring and inspection efforts either through direct funding or by cloaking
private citizens with some of its own power to impose limited fines for
clear-cut violations.For example, if
the government wanted to avail itself of citizen manpower to patrol national
parks to prevent littering, careless setting of fires, or other infractions, it
could deputize citizens to act as private forest rangers, who could issue
citations to violators.The Polish
government has recently established such a program. (95) Another option might
be for the government to subsidize citizen environmental enforcement litigation
directly.One Australian territory has
encouraged citizen suits by directly subsidizing them through legal assistance.
(96)

Industry cooperation with private monitoring efforts could
be encouraged by either publicizing the value of such efforts or subsidizing
them by allowing a tax deduction for the costs of the program.Finally, statutory fee and cost-shifting
provisions can give citizens the financial capability to initiate their own
enforcement actions.

4.2.3 Accessible
Information

Almost all of the citizen involvement in environmental
enforcement discussed above would be impossible if citizens did not have ready
access to information about potential violations.One invaluable source for such information is data on pollution
levels supplied by polluters themselves, as part of a regulatory
self-monitoring and reporting regime.It is difficult to overstate the importance of such reports in not only
initiating suits, but also giving citizens the capability to win them. (97)

In the U.S., the Clean Water Act's requirement that the
holders of permits to discharge effluents from point sources submit regular
Discharge Monitoring Reports (DMRS) to the government is perhaps the best
example of a regulatory mechanism for creating and disseminating information
that citizens can use in enforcement. (98) DMRs are often accepted by courts as
definitive proof of a violation, since they are written and filed by the
alleged violator itself.

Another useful information access mechanism in the U.S. is
the so-called "right-to-know" statute, which requires industries
storing and using certain hazardous substances to report to workers and
communities on the amounts of the substances stored, used, and discharged on­site.
(99) This "right-to-know" provision has helped citizens to identify
and prove environmental violations.

Of course, it is essential to ensure that self-monitoring
and reporting data are easily available to the public.A government-wide access-to-information
provision, such as the U.S. Freedom of Information Act, can ensure that
citizens are able to obtain those data, as well as other information held by
the government that may be relevant to environmental enforcement efforts.The government could attempt to meet
citizens halfway by not only responding to citizen requests, but affirmatively
disseminating environmental data collected in the course of its regulatory
duties. (100)

5CONCLUSION

Citizen involvement is crucial to
the establishment and implementation of a fair and effective environmental
protection regime.As this paper has
attempted to illustrate, the opportunities for -- and the benefits from --
citizen involvement are many and wide-ranging.Citizens can both supplement government enforcement efforts and
encourage the government to maintain and sharpen its focus on environmental
protection.Indeed, involvement by the
public may be the vital ingredient necessary to transform environmental
protection statutes and regulations from aspirations into reality.Policymakers setting up and implementing
environmental controls can draw upon the resources of citizens to further the
common goal of environmental protection by making enforcement work.

ENDNOTES

1.This
triad of environmental concerns was described in S. HAYS, BEAUTY, HEALTH, &
PERMANENCE: ENVIRONMENTAL POLITICS IN THE UNITED STATES 1955-1985 (1987).

4.This
may be especially true in state agencies and enforcement programs, whose
employees tend to be closer financially, politically, and personally to the
potential violators than are federal officials.See Smith, The Viability of Citizen Suits under the Clean
Water Act after Gwaltney, 40 CASE W. RES.L. REV. 1, 55-56 (1989-90).

6.See Webb,
Taking Matters into Their Own Hands: The Role of Citizens in CanadianPollution
Control Enforcement, 36 McGill L.J. 770, 819 (1991) (discussing how private
prosecutions in Canada clearly illuminate the unfairness and incoherence of
current enforcement activities).

10.Many
nations rely on citizens and environmental organizations to identify and report
violations -- and in some cases to pressure agencies into enforcement
actions.This ability is a particularly
important part of the European Community enforcement program.See EUROPE, Supra note 8, at 146;
Smith & Hunter, The European Community Environmental Legal System, 22
ENVTL.L. REP. (Envtl.L. lnst.) 10,106, 10,113 (1992).Some Central and Eastern European nations
are also beginning to recognize the utility of citizen monitoring.See Allen, The PolishEcological
Clubs: "Before, we could blame the communists.Now we have to have the bestarguments.", TRANSATLANTIC
PERSPECTIVES (German Marshall Fund, Washington, D.C.), Spring 1992, at 10
(describing the Polish Ecological Club's environmental inventory of a polluted
creek, its report to the city government, and the follow-up by the state
enforcement agency).

13.Because
waterways in the U.S. are state property, citizens may directly approach point
sources of pollutants, or identify areas where nonpoint pollution (from
fertilizers or feed lots, for example) is causing a water quality problem.As an example of the role of organized
citizen groups, the Izaak Walton League of America trains citizens to monitor
the health of local and regional streams.Those citizens then report information to a national clearinghouse,
which notifies state or federal agencies.Although citizens volunteer for the monitoring program, personal
interest is not the only motivating force: State agencies help fund the
League's training and reporting programs.Telephone Interview with Loren Kellogg, National Monitoring Coordinator
for the Save Our Streams Program, Izaak Walton League of America (June 8,
1992).

16.Consider
the activities of the environmental organization Lighthawk, which uses private
planes and pilots to monitor environmental harm from the air in the U.S. and
other countries.See Wood, Aerial
Crusaders, THE CHRISTIAN SCIENCE MONITOR, July 14, 1988, at 10.

19.The
U.S. Federal Water Pollution Control (Clean Water) Act requires holders of
permits allowing discharge of pollutants into the water to submit regular
"Discharge Monitoring Reports." See 33 U.S.C. § 1318
(1988).The U.S. Emergency Planning and
Community Right-to-Know Act (EPCRA), 42 U.S.C.A. §§ 11001-11050 (West 1983
& Supp. 1992), imposes extensive self monitoring and reporting requirements
on certain industries that use and release extremely hazardous chemicals.A summary of monitoring reports required
under U.S. environmental protection statutes in the mid-1980s can be found in
CITIZEN SUITS, supra note 14, at 132-33.In addition, a forthcoming Environmental Law Institute Working
Paper, PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION, will analyze in greater
detail such reporting requirements and their possible applications to public
participation in the environmental protection system.

20.Freedom
of Information Act of 1966, 5 U.S.C. § 552 (1988).

21.For a
discussion of the importance of information and clear standards, see ELI STUDY,
supra note 5, at V- 1 3 to V- 1 5.

24.If the
citizen is bringing a lawsuit under an U.S. environmental statute with a
citizen suit provision, he or she will be required to give advance notice to
the alleged violator and to the government.This notice provision allows the violator an opportunity to come into
compliance and enables the government to eliminate the need for the citizen
suit by taking its own enforcement action.See infra Section 2.3.2.1.

26.For a
more detailed discussion of the various ways in which the public can
participate in the environmental protection process, see ENVIRONMENTAL L.
INST., PUBLIC PARTICIPATION IN ENVIRONMENTAL REGULATION (ELI Working Paper,
Jan. 1991).

27.In the
U.S., for example, courts generally presume that the individual is adequately
represented by the government.See
CITIZEN SUITS, supra note 14, at 66-67.Intervention is governed by statutes regulating all federal court cases
which require that the intervener have an interest in the "property or
transaction" at issue.FED.R. Civ.P. 24(b).

32.For
example, if a statute provides that an agency "shall complete a thorough
review" of air quality criteria, the agency must undertake such a review,
regardless of whether the review is likely to prompt revision of the
criteria.See Environmental Defense
Fund v. Thomas, 870 F.2d 892 (2d Cir. 1989).

33.Such a
court order will subject the agency to judicial penalties if the agency
violates the order by continuing its failure to act.

36.Suits
seeking judicial review of agency decisions have been particularly important as
a way of forcing agencies to consider the environmental impacts of their
actions under the U.S. National Environmental Policy Act of 1970 (NEPA), 42
U.S.C. § 4321 (1982).The first suit
brought under NEPA was brought by citizens and established the right of
citizens to bring suits to enforce the environmental assessment requirements of
the statute.See Calvert Cliffs
Coordinating Comm. v. Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir.
1971).Since that time, numerous suits
have been brought against agencies for failure to file an environmental impact
statement, or for filing an inadequate one.In the 1980s, over 800 suits led to 116 injunctions preventing agency
action without further environmental assessment.U.S. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY
1991, at 142-43 (1992).As with many other environmental
regulations, judicial review under NEPA has been limited to an examination of
the procedural rather than the substantive requirements of the statute.Nonetheless, those procedural requirements,
enforced by citizen suits, have forced agencies at least to examine the
environmental consequences of their actions -- a significant step beyond the
pre-NEPA requirements.For additional
information about the relationship between the substantive and procedural
requirements of NEPA and the role both have played in altering agency action,
see ENVIRONMENTAL L. INST., ENVIRONMENTAL IMPACT ASSESSMENT: INTEGRATING
ENVIRONMENTAL PROTECTION AND DEVELOPMENT PLANNING (ELI Working Paper, June
1991).

37.Courts
in the United States have willingly carried the doctrine of prosecutorial
discretion through to the environmental statutes.Even where statutory language would appear to make enforcement a
non-discretionary duty, courts have held that unless the language is explicit,
discretion remains in the agency.See,
e.g., DuBois v. Thomas, 820 F.2d 943 (8th Cir. 1987) (under the Clean Water
Act, citizen suits cannot require enforcement).

38.In a
system, such as that in the U.S., that embraces the doctrine of prosecutorial
discretion, allowing citizens to take enforcement actions will be crucial to
achieving environmental protection goals.

42.Although
European- Community (EC) law permits organizations to sue governments for
violations of EC regulations, this is only true when individual nations grant
standing to that group, and most European nations do not.See, e.g., EUROPE, supra note 8, at
85 (discussing standing provisions in West Germany).Only Ireland's laws appear comparable to U.S. provisions: Irish
citizens may bring a suit for injunctive relief against any person for
violations of water, air, or land use regulations.Because of the risk that the plaintiff will have to pay
defendant's costs and fees, however, the suits have not been commonly
used.Id. at 11-12.In addition, Spain and Ireland appear to
grant citizens some rights to enforce summarily those countries' limited
criminal environmental statutes.Id. at
13, 37.Under Brazilian law, citizen
organizations that have been in existence for at least two years can file
"public actions" requesting the state or federal attorney general to
investigate threats to the environment.Interview with Alberto Ninio, Staff Attorney at the Environmental Law
Institute, in Washington, D.C. (July 1, 1992).

46.In
addition, if the defendant's conduct is found to be malicious or wanton, a jury
can award additional damages, beyond those necessary to compensate the
plaintiff, solely for the purpose of punishing the defendant.There is no requirement that these
"punitive damages" be proportional to compensatory damages.See Browning-Ferris Indus., Inc. v. Kelco
Disposal, Inc., 492 U.S. 257 (1989) (upholding a jury's award of $6 million in
punitive damages in a case involving compensatory damages of only $51,146).

47.Consider
a factory that emits particulates that cause fog to form on a nearby highway,
slowing traffic and causing occasional accidents.Any single traveler on the highway might not be able tobring a suit to abate this public nuisance,
but the roadside homeowner into whose house fog-blinded vehicles regularly
crashed would have a "special injury" and would be able to bring
suit.

50.The
standing requirements are very minimal, and nearly any individual can sue for
violation of the statute.MICH.Comp.LAWS ANN. § 691.1201 (West Supp. 1984).Six other states adopted statutes based on Michigan's soon after 1970,
but only Michigan's has been regularly used.

51.Ray v.
Mason Country Drain Commissioner, 224 N.W.2d 883 (Mich. 1975).Despite the breadth and potential power of
the Michigan statute, it has been used only rarely.By 1983, the statute had been the basis for only 185 actions,
most of which were filed in its early years.Seegenerally Slone, The Michigan Environmental Protection
Act: Bringing Citizen-initiatedEnvironmental Suits Into the 1980s, 14
ECOLOGY L.Q. 271 (1985).

52.Consider,
for example, Japan's Civil Code Article 199, which provides that "[if] a
possessor is disturbed in his possession, he may by an action for maintenance
of possession demand discontinuance of the disturbance as well as compensation
for damages." J. GRESSER, K. FUJIKURA & A. MORISHIMA, ENVIRONMENTAL
LAW IN JAPAN 135 n.16 (1981).

53.See
Bándi,
Environmental Enforcement in Hungary -- Today and Tomorrow 10 (Paper Presented
at the Second International Conference on Environmental Enforcement, Sept.
1992).

56.In
addition, if the settlement results in a consent decree approved and enforced
by the court, it can include legally enforceable provisions governing the
future conduct of the parties, rather than simply allowing the defendant to pay
an initial fee and then continue the challenged conduct.See M. AXLINE, supra note 28, at
7-29.

58.This
policy decision often has strategic consequences for the citizen litigant.A plaintiff who happens to qualify for both
a common law damages action and a statutory enforcement action might bring the
two concurrently, thereby hoping to increase her bargaining power over the
violator.

62.In the
United States, citizens may only file enforcement suits if the violations are
ongoing or if there is a substantial likelihood that they will be
repeated.See Gwaltney of Smithfield,
Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49 (1987).

63.U.S.
courts take this requirement very seriously.See Hallstrom v. Tillamook Cty., 493 U.S. 20 (1989).However, lawsuits may be brought immediately
after filing notice in the event of violations of certain standards,
particularly when the violation may threaten human health.See Clean Air Act § 304(b).

64.See
generally CITIZEN
SUITS, supra note 14, at 53-62.

65.See
id. at 77.In some cases, as when an endangered species
is threatened, a statute may explicitly require the court to issue an
injunction.U.S. Endangered Species Act
§ 11 (g)(1).

68.Under
one United States statute, the Clean Air Act, judges may assign up to $100,000
of these penalties to a fund which will be used for "beneficial mitigation
projects which are consistent with" the Act.Clean Air Act § 304(g)(2).

69.See
Clean Water Act § 505(a); RCRA § 7002(a); Clean Air Act § 304(a).The 1990 inclusion of civil penalties in the
Clean Air Act Amendments is significant, because it represents a recent
Congressional endorsement of the usefulness of such provisions.

70.See,
e.g., Toxic Substances
Control Act § 16(a).

71.In one
successful citizen suit brought to rectify permit violations by a wastewater
treatment plant, the appellate court found that the trial court's civil penalty
award of $3.2 million was too low.The
court of appeals instructed the trial court to recompute the penalty,
suggesting that the appropriate total might be the statutory maximum of $4.2
million.See Public Interest Research
Group of New Jersey v. Powell Duffyn Terminals, Inc., 720 F. Supp. 1158 (D.N.J.
1989), aff'd in part and rev'd in part, 913 F-2d 64 (3d Cir. 1990).

73.See Cross,
supra note 2, at 70-71 (1989).For
a more appreciative perspective on this type of settlement, see Mann,
Polluter-Financed Environmentally Beneficial Expenditures:Efficient Use
or Improper Abuse of Citizen Suits Under the Clean Water Act? 21
ENVTL.L. 175 (1991).

77.As
noted above in Section 2.3.1.3, the doctrine of "prosecutorial discretion"
precludes citizen challenges to government decisions not to take particular
enforcement actions in the United States.This limitation renders the availability of citizen enforcement actions
particularly important.Even in the
U.S., however, a blanket failure to enforce any portion of a statutory
or regulatory regime might still be subject to court challenge.See Heckler v. Chaney, 470 U.S. 821, 833 n.4
(1985).

78.Valley
Forge Christian College v. Americans United for Church and State, 454 U.S. 464
(1982).

79.This
constitutional standing requirement applies to all lawsuits, not just to
enforcement suits brought under citizen suit provisions.In practice, most controversy over standing
centers on statutory suits, not common law actions.Courts may perceive a greater threat of inappropriate citizen
involvement in a statutory, as distinct from a common law, action.In the latter case, a plaintiff cannot
prevail without proving that he was injured by the challenged actions; no such
requirement applies to a citizen plaintiff in an environmental enforcement
suit.

80.This
view of standing remains common in many other nations.See EUROPE, supra note 8, at 81-82
(discussing West German standing provisions).

84.Contrast
this with an Irish case in which "an association of traders who objected
to the competition caused by [a] . . . development [that violated zoning laws]
successfully sought an injunction to close it down, even though their
motivation was largely commercial." EUROPE, supra note 8, at 13-14
(citations omitted).

85.See
Kaftan, A.E. y otro
v. Gobierno Nacional (Poder Ejecutivo), 1983-D L.L. 568, 576 (1983).First, the judge construed the preamble of
the 1853 Argentine Constitution, declaring the framers' intent to ensure and
guarantee general welfare and property to future generations, as a mandate to
all branches of government, including the judiciary, to protect the
environment.Second, the judge found
that a right to ecological protection was implied by another constitutional
provision.Finally, the judge relied on
a provision in a wildlife protection statute imposing on Argentine citizens a
duty to protect wildlife, as well as a law ratifying an international
convention on the trade of endangered species.

86."An
estimated 1,000 to 1,400 federal facilities in the United States are either on
the Superfund list [i.e., they have been determined to contain significant
hazardous waste deposits] or eligible for that list." M. AXLINE, supra note
28, § 2.08.

87.See
Bowman & Hunter, supra note 9, at 345 (noting that at the time of
the revolutions in theregion, over 90%
of property and industries in Central and Eastern Europe were owned by the
state, and that privatization is proceeding slowly); Bándi, supra note
53, at 4 (stating that over 80% of the Hungarian economy is still in state
ownership).

88.In
fact, because the federal government cannot sue itself, statutory citizen suits
and suits brought by the states are effectively the only way in which
environmental standards can be enforcedin
the United States against federal government entities.

89.Because
common law actions for damages present an opportunity for a personal benefit to
the plaintiff, the traditional rules of cost-bearing may be more appropriate in
such cases.

93.See,
e.g., Greve, supra note
25, at 353 (only one quarter of citizen suits filed in the United States
between 1984 and 1988 were brought by individual or local coalitions, with the
remainder filed by national or regional environmental organizations).

94."Public
interest law firms" encompass the litigation departments of large
environmental organizations.These
organizations, which rely for survival on attorney fee provisions in
environmental, civil rights, and other statutes, are an additional driving
force for the liberalization of the U.S. statutory regime and legal
system.An introduction to the role of
public interest law firms can be found in Bonine, The New Private Public
Interest Bar, 1 J. ENVTL.L. &
LITIG.Xi (1986).

95.The
Polish Nature Protection Act provides for the deputization of private citizens
as "Environmental Protection Guards," who enforce environmental
regulations within national parks and forest reserves, or as "Communal
Protectors of Nature," who maintain the parks and forests and instruct
people about environmental regulations.See Bowman & Hunter, supra note 9, at 314.

96.See Preston,
supra note 8, at 61-65.

97.A 1984
report on citizen suits in the United States identified the lack of readily
accessible information as "the single most important factor inhibiting
citizen enforcement." "The crucial variable" in a successful
citizen suit regime was information provided to citizens in a form that
identified key compliance indicators.ELI STUDY, supra note 5, at V-1 2 to V-1 3.

98.See
supra note 19.

99.See
id.

100.For a
more detailed discussion of information access mechanisms and their uses, see
ENVIRONMENTAL L. INST., PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION (ELI Working
Paper, forthcoming 1992).